You wouldn't think that in the United States we would have to convene a symposium like this to discuss "our nation's use of torture." Those of us who've lived our entire lives in this country always learned that we grew up in a nation of laws, a nation of mercy and justice. You wouldn't think that this nation, created under the rule of law and thriving under it through the spasms of Civil War, world wars, economic disaster and social upheaval, could throw over its very foundation and commit the kinds of acts previously limited to rogue states and totalitarian regimes.

Torture and America

Unfortunately, in George W. Bush's America, that is the reality we must face. We are all familiar with the overwhelming lack of legality and morality of state-sponsored torture. On legal grounds, humane grounds, moral grounds, torture has been repudiated by all civilized societies as an instrument of warfare. That repudiation has been codified in the Geneva Conventions, the UN Convention on Torture and indeed in U.S. law. Those laws have further been institutionalized in our military's codes of conduct of war.

But through the machination of this administration's intention to expand the power of the executive, the jurisprudence of civilized nations has gone out the window. White House lawyers have argued that when acting as Commander-in-Chief, the President is above the law. And so have they argued on everything. Torture. Enemy combatants. Warrantless surveillance of American citizens.

I'm not a lawyer. I can't discuss in any depth the intricacies of the Yoo and Bybee memos and how they relate to legal precedent regarding the executive; how these advisory opinions square with the Federalist Papers and the thinking of our founders. Those are critical discussions to have—the legal repudiation of these arguments is absolutely necessary—and others participating in this symposium will provide them.

Beyond the legal arguments, beyond the moral arguments, there's another aspect to the torture debate. That's the core problem with torture used as a tool in our nation's defense:

It doesn't work.

The evidence that it is an ineffective tool in securing valid information is both anecdotal and empirical. The U.S. Defense Intelligence Agency and the Pentagon's Counterintelligence Field Activity sponsored a study (PDF), concluding that torture has never been proven an effective interrogative device. From an article about the report in the Washington Post:

There is almost no scientific evidence to back up the U.S. intelligence community's use of controversial interrogation techniques in the fight against terrorism, and experts believe some painful and coercive approaches could hinder the ability to get good information, according to a new report from an intelligence advisory group….

In it, experts find that popular culture and ad hoc experimentation have fueled the use of aggressive and sometimes physical interrogation techniques to get those captured on the battlefields to talk, even if there is no evidence to support the tactics' effectiveness. The board, which advises the director of national intelligence, recommends studying the matter.

"There is little systematic knowledge available to tell us 'what works' in interrogation," wrote Robert Coulam, a research professor at the Simmons School for Health Studies in Boston. Coulam also wrote that interrogation practices that offend ethical concerns and "skirt the rule of law" may be narrowly useful, if at all, because such practices could undermine the legitimacy of government action and support for the fight against terrorism.

It's perhaps a hallmark of regimes that choose to use torture that the legitimacy of government action takes a back seat to expediency, to the exercise of sheer power. Vladimir Bukovsky, a Soviet human rights expert who spent over a decade in Soviet prison camps had first hand knowledge of this phenomenon. He wrote an op-ed in the Washington Post:

One nasty morning Comrade Stalin discovered that his favorite pipe was missing. Naturally, he called in his henchman, Lavrenti Beria, and instructed him to find the pipe. A few hours later, Stalin found it in his desk and called off the search. "But, Comrade Stalin," stammered Beria, "five suspects have already confessed to stealing it."

This joke, whispered among those who trusted each other when I was a kid in Moscow in the 1950s, is perhaps the best contribution I can make to the current argument in Washington about legislation banning torture and inhumane treatment of suspected terrorists captured abroad. Now that President Bush has made a public show of endorsing Sen. John McCain's amendment, it would seem that the debate is ending. But that the debate occurred at all, and that prominent figures are willing to entertain the idea, is perplexing and alarming to me. I have seen what happens to a society that becomes enamored of such methods in its quest for greater security; it takes more than words and political compromise to beat back the impulse.

This is a new debate for Americans, but there is no need for you to reinvent the wheel. Most nations can provide you with volumes on the subject. Indeed, with the exception of the Black Death, torture is the oldest scourge on our planet (hence there are so many conventions against it). Every Russian czar after Peter the Great solemnly abolished torture upon being enthroned, and every time his successor had to abolish it all over again. These czars were hardly bleeding-heart liberals, but long experience in the use of these "interrogation" practices in Russia had taught them that once condoned, torture will destroy their security apparatus. They understood that torture is the professional disease of any investigative machinery….

So, why would democratically elected leaders of the United States ever want to legalize what a succession of Russian monarchs strove to abolish? Why run the risk of unleashing a fury that even Stalin had problems controlling? Why would anyone try to "improve intelligence-gathering capability" by destroying what was left of it? Frustration? Ineptitude? Ignorance? Or, has their friendship with a certain former KGB lieutenant colonel, V. Putin, rubbed off on the American leaders? I have no answer to these questions, but I do know that if Vice President Cheney is right and that some "cruel, inhumane or degrading" (CID) treatment of captives is a necessary tool for winning the war on terrorism, then the war is lost already.

Torture, "the professional disease of any investigative machinery," has infected the U.S. military and intelligence agencies. The results were predictable and immediate, as the New York Times reported in December, 2005. The false statements of an Al Qaida-Iraq link made by captured Al Qaida leader Ibn Al-Shaykh Al-Libi, relied upon by the Bush Administration to argue in favor of the Iraq war, came as a result of torture threats. Al-Libi told his interrogators what they wanted to hear—what the administration most wanted to hear—justification to go to war against Iraq.

There's also the complicated case of Khalid Sheik Muhammed, who was subjected to waterboarding and subsequently confessed to having been the key not only to the 9/11 attacks, but to a litany of assassination plots and terrorist attacks. He even confessed to having personally beheaded Daniel Pearl. Is it possible that this monster of a man really committed each of these horrific acts, or did torture simply break what has been argued by some was an already fragile psyche? Or did KSM confess everything to save his fellow detainees?

Many veteran CIA and military experts have argued that this is the predictable result of torture and the threat of torture. The captive will say anything, anything at all, just to make it stop. In the case of al-Libi, one CIA source was quoted

"This is the problem with using the waterboard [being held under water until you think you will die, known to the Latin American military as the submarino]. They get so desperate that they begin telling you what they think you want to hear."

The article in which this CIA source is quoted has more:

Take the case of the Peruvian student Magdalena Monteza, abducted as an alleged subversive. After being tortured and repeatedly raped by her captors, she admitted to being part of a revolutionary cell. In the film State of Fear, she describes her story: "I'd never had sex before. I was a virgin, 19 years old… I couldn't take the torture so I decided to sign. I confessed to things I never did… If they had sentenced me to death I wouldn't have cared." The Canadian-Briton Bill Sampson was repeatedly tortured in a Saudi jail. Under torture, he admitted to being part of a network responsible for bombings and murder, thus enabling the authorities to pretend that there is no homegrown terrorism in Saudi Arabia.

And, of course, there's the U.S. army intelligence manual:

"The use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear."

To those who say we should be cruel because our enemies are, McCain has a ready response: "Our values are different from those of our enemies. . . . We do not abuse human rights." To those who say we should use any technique to obtain intelligence, McCain says: "Torture doesn't work."

The use of torture has not made the United State safer. It puts our own troops in jeopardy of being tortured when they are captured. Further, it taints the actual case against the confessor. It leads our intelligence agencies down blind paths and muddies their investigations.

Those are the practical arguments against torture, arguments that shouldn't have to be made. Historical, legal, and moral arguments should be enough. Our policy-makers should not be in the position of having to even go to the practical reasons not to torture. Torture should be rejected as a matter of course.

Thus, the most damaging case against the use of torture by the United States is evidenced in this entire discussion. We've actually reached the point where the legal and moral arguments are not enough to repudiate the practice. It is illustrative of the damage that the bland acceptance of torture, rendition, Abu Ghraib has wrought. These putrid morals seep into our being, and infect us in all manner of ways. That serious people are having a serious discussion about the instances of whether torture is appropriate is as clear of sign of the sickness we face.

The damage done to the nation by making the unthinkable not only thinkable but actually implemented is quite possibly irreparable. Because the nation and the Congress didn't rise up in opposition to condemn it, it has been turned into a political issue. Because it has become politics, it has become a policy issue. And in trying to make it another policy issue, trying to make it in the purview of governing business as usual in, we end up bringing it into the realm of business as usual.

Thus, we end up with the torture legislation that says "Okay, it's completely illegal except maybe when the CIA does it." We end up with a law that actually strikes down centuries of legal precedent with habeas corpus. We end up with a populace that accepts the unthinkable as commonplace.

How do we as a nation recover from that? How do we regain the integrity of a nation governed by the rule of law after we've stepped into this breach?

If it is even possible to restore credibility to this nation, it will only be through efforts like this one that the ACLU is sponsoring, and by shining a bright light on it.